Citation Nr: 0326061
Decision Date: 10/02/03 Archive Date: 10/15/03
DOCKET NO. 02-05 971 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for malaria.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from January 1943 to
January 1946.
This case comes before the Board of Veterans Appeals (Board)
on appeal from an October 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which denied the veteran's claim for
service connection for malaria.
In a May 2002 VA Form 9, the veteran requested a Travel Board
hearing at the RO. However, in a statement dated June 17,
2002, he withdrew his request for a hearing. 38 U.S.C.A.
§ 20.704(e) (2002).
FINDINGS OF FACT
1. The veteran was notified of the type of evidence needed
to support his claim, apprised of whose responsibility-his
or VA's, it was for obtaining the supporting evidence, and
all relevant evidence necessary for an equitable disposition
of his claim was obtained.
2. There is no medical evidence currently of record
indicating the veteran had malaria either while on active
duty in the military or even at any time during the many
years since, much less residuals of it.
CONCLUSION OF LAW
Malaria was not incurred or aggravated during service. 38
U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.159, 3.303 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
During the pendency of this appeal, on November 9, 2000, the
President signed into law the VCAA, Pub. L. No. 106-475, 114
Stat. 2096 (2000). This Act is applicable to all claims
filed on or after the date of its enactment, November 9,
2000, or filed before that date and not yet final. This new
law eliminates the concept of a well-grounded claim and
redefines the obligations of the VA with respect to the duty
to assist claimants in the development of their claims.
First, the VA has a duty to notify the claimant and
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A.
§§ 5102 and 5103. Second, the VA has a duty to assist the
claimant in obtaining evidence necessary to substantiate the
claim. 38 U.S.C.A. § 5103A.
The VA has promulgated revised regulations to implement these
changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159
and 3.326(a)). The intended effect of the new regulations is
to establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim.
The Board finds that the VA's duties under the law and
recently revised implementing regulations have been
fulfilled. The veteran was provided adequate notice as to
the evidence needed to substantiate his claim. For example,
the discussions in the October 2001 rating decision appealed
and in the April 2002 statement of the case informed the
veteran of the information and evidence needed to
substantiate his claim and of the governing laws and
regulations. Additionally, a letter dated in April 2001 from
the RO specifically informed him of the enactment of the VCAA
and all that it entails. This included apprising him of VA's
duty to notify under this new law, VA's duty to assist in
obtaining evidence, what the evidence must show for
entitlement, when and where to send pertinent information,
what VA had done to assist in the development of the claim,
and how to contact VA for additional assistance. The RO also
informed him that it would obtain any VA or other Federal
records that he identified.
The documents and communications mentioned above, especially
when considered collectively, also explained what evidence
the veteran was personally responsible for obtaining and what
evidence VA would attempt to obtain on his behalf.
See generally Quartuccio v. Principi, 16 Vet. App. 183
(2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).
And the basic requirements for establishing his entitlement
to service connection for malaria have remained unchanged,
despite the change in the law with respect to the preliminary
duties to notify and assist.
All medical and other evidence cited by the veteran as
relevant to his claim either has been obtained or, if not, is
unobtainable. Unfortunately, all of his service medical
records (SMRs) could not be obtained. As a means of
obtaining the missing SMRs, the RO contacted the National
Personnel Records Center (NPRC) in St. Louis, Missouri, which
is a military records repository. The NPRC indicated that
the veteran's SMRs were destroyed in a fire at that facility
in 1973; the NPRC subsequently submitted information from the
Hospital Admission Card data files created by the Surgeon
General's Office (SGO). The RO also obtained records of
several private doctors the veteran cited as supportive of
his claim.
The Board finds, then, that VA has no outstanding duty to
inform the veteran that any additional information or
evidence is needed. VA also has satisfied its duty to assist
him with his claim, to the extent possible. And as will be
explained later, his claim must be denied-not because of his
missing SMRs, but rather, since there is no competent medical
evidence of record which confirms that he has any residuals
of malaria related to service. It is the absence of any
current showing of malaria or any residuals thereof, much
more so than the missing SMRs, which is fatal to his appeal.
See, e.g., Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000) ("A veteran seeking disability benefits must establish
. . . the existence of a disability [and] a connection
between the veteran's service and the disability . . .").
Also found at Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir.
2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000);
Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v.
West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).
Because of the missing SMRs, however, the Board has a
"heightened" duty to more fully articulate the reasons and
bases for its decision and to carefully consider applying the
benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet.
App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991).
There are a few other points worth noting before proceeding
further. As noted above, the RO also has considered the VCAA
and its implications. See the RO's letter to the veteran,
dated April 19, 2001, which was sent prior to adjudicating
his claim in October 2001. Consequently, there is no risk of
prejudicing the veteran in going ahead and deciding his
appeal. He has been told what the requirements are
to establish service connection, has been provided ample
opportunity to present evidence meeting these requirements,
and has had the assistance of the RO to develop every
possible source of evidence or information that might
substantiate his claim. See Bernard v. Brown, 4 Vet. App.
384 (1993). In the circumstances of this case, further
development would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
Therefore, no further assistance to the veteran with the
development of evidence is required for this claim.
II. Factual Background
As already acknowledged, the veteran's SMRs are unavailable.
And this is indeed an unfortunate situation. In response to
the RO's attempts to obtain his SMRs, the NPRC explained that
the records may have been destroyed in a fire that occurred
at the facility in 1973. The Board recognizes the particular
importance of supplying reasons and bases for a decision
when, as here, a veteran's SMRs have been destroyed.
In O'Hare v. Derwinski, 1 Vet. App. 365 (1991), the Court
explained that "where service medical records are presumed
destroyed...the Board's obligation to explain the findings
and conclusions...is heightened."
The record indicates that, in August 2000, the NPRC submitted
information from the Hospital Admission Card data files
created by the SGO. These records show hospitalizations in
December 1944, January 1945, and July 1945; but these
records show no complaints, treatment, or a diagnosis of
malaria.
The same is true for many, many years after the veteran's
service in the military ended in January 1946.
In March 2001, the veteran filed a claim for service
connection for malaria. He also filed other claims for open
heart surgery, colon cancer, arthritis, and prostate cancer.
Medical evidence of record, including VA as well as private
treatment reports, dated from November 2001 to June 1992,
show no complaints, treatment, or a diagnosis of malaria.
III. Legal Analysis
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2002). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2002).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (2002). This does
not mean that any manifestation in service will permit
service connection. To show chronic disease in service there
is required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic."
When the disease identity is established, there is no
requirement of evidentiary showing of continuity. When the
fact of chronicity in service is not adequately supported,
then a showing of continuity after discharge is required to
support the claim. 38 C.F.R. § 3.303(b) (2002).
The United States Court of Appeals for Veterans Claims
(Court) has held that, in order to prevail on the issue of
service connection, there must be medical evidence of a (1)
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus or
link between the in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999);
Pond v. West, 12 Vet. App. 341, 346 (1999).
Where the determinative issue involves a diagnosis or, say, a
nexus to service, competent medical evidence is required. So
this evidentiary burden typically cannot be met simply by lay
testimony because laypersons are not competent to offer
medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992). When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Board has thoroughly reviewed the evidence of record in
this case. Unfortunately, it does not even show the veteran
has, or ever has had, malaria, much less that it is related
to his service in the military.
Applying the Hickson analysis, the initial question is
whether there is medical evidence of current disability,
i.e., a medical diagnosis confirming the veteran in fact has
malaria. Unfortunately, there is not. And by the same
token, there also is no probative evidence or other
indication that he even had the condition while on active
duty in the military. So Hickson element (2) has not been
satisfied, either. Despite his contentions to the contrary,
there simply is no objective indication that he had relevant
complaints (symptoms, etc.) or received a diagnosis of
malaria at any time while in service.
Since there is no medical evidence currently of record
confirming the veteran has, or ever has had, malaria, much
less that it is related to his service in the military,
the preponderance of the evidence is against his claim.
Consequently, there is no reasonable doubt to resolve in his
favor. 38 U.S.C.A. § 5107(b) (West 2002); Alemany v. Brown,
9 Vet. App 518, 519 (1996). Accordingly, service connection
for malaria is not warranted.
ORDER
The claim for service connection for malaria is denied.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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